Aotearoa New Zealand history with Dr Vincent O'Malley and occasional guest contributors

Saturday, 15 November 2014

On the Waitangi Tribunal's Northland Report

The Waitangi Tribunal yesterday released its report on Stage One of the Te Paparahi o Te Raki (Northland) Inquiry. Stage One of this inquiry was solely concerned with two key agreements: the 1835 Declaration of Independence of New Zealand/He Whakaputanga o te Rangatiratanga o Nu Tireni; and the 1840 Te Tiriti o Waitangi/the Treaty of Waitangi. The Tribunal's own press release summarises the report's findings:

Treaty Signatories Did Not Cede
Sovereignty in February 1840 – Tribunal

The
rangatira who signed te Tiriti o Waitangi in February 1840
did not cede sovereignty to the British Crown, the Waitangi
Tribunal has concluded.

The Tribunal today released its
report on stage 1 of its inquiry into Te Paparahi o te Raki
(the great land of the north) Treaty claims.

The report
concerns the ‘meaning and effect’ of the Treaty in
February 1840, when the first signings of te Tiriti took
place in the Bay of Islands and the Hokianga. Stage 2 of the
inquiry, which is under way, will consider events after
February 1840.

‘Though Britain went into the treaty
negotiation intending to acquire sovereignty, and therefore
the power to make and enforce law over both Māori and
Pākehā, it did not explain this to the rangatira’, the
Tribunal said.

Rather, Britain’s representative William
Hobson and his agents explained the Treaty as granting
Britain ‘the power to control British subjects and thereby
to protect Māori’, while rangatira were told that they
would retain their ‘tino rangatiratanga’, their
independence and full chiefly authority.

‘The rangatira
who signed te Tiriti o Waitangi in February 1840 did not
cede their sovereignty to Britain’, the Tribunal
concluded. ‘That is, they did not cede authority to make
and enforce law over their people or their
territories.’

The rangatira did, however, agree ‘to
share power and authority with Britain’.

‘They agreed
to the Governor having authority to control British subjects
in New Zealand, and thereby keep the peace and protect
Māori interests’, the Tribunal said.

‘The rangatira
consented to the treaty on the basis that they and the
Governor were to be equals, though they were to have
different roles and different spheres of influence. The
detail of how this relationship would work in practice,
especially where the Māori and European populations
intermingled, remained to be negotiated over time on a
case-by-case basis.’

The Tribunal said that, having
considered all of the evidence available to it, the
conclusion that Māori did not cede sovereignty in February
1840 was inescapable.

The Tribunal said nothing about how
and when the Crown acquired the sovereignty that it
exercises today. However, it said, the Crown ‘did not
acquire that sovereignty through an informed cession by the
rangatira who signed te Tiriti at Waitangi, Waimate, and
Mangungu’.

The question of whether the agreement that
was reached in February 1840 was honoured in subsequent
interactions between the Crown and Māori will be considered
during stage 2 of the inquiry.

Those findings were almost immediately being branded as wrong. Just 23 minutes after the media embargo on the Tribunal's report expired, Professor Paul Moon issued his own press release:

Auckland University of Technology
Professor Paul Moon – who is a Treaty specialist – has
criticised the Waitangi Tribunal’s Inquiry into issues of
Maori sovereignty, which has been released today, claiming
it got basic aspects about the Treaty’s history
wrong.

“I was shocked by some do the statements
contained in the report,” says Professor Moon. “This is
not a concern about some trivial detail, but over the
fundamental history of our country, which the Tribunal has
got manifestly wrong.”

“In particular, the Tribunal
alleges that ‘Britain went into the treaty negotiation
intending to acquire sovereignty, and therefore the power to
make and enforce law over both Maori and Pakeha’. This is
simply not true,” says Professor Moon, “and there is an
overwhelming body of evidence which proves precisely the
opposite. I cannot understand how the Tribunal got this so
wrong.”

Professor Moon is also critical of the way which
the Tribunal elevates the importance of the 1835 Declaration
of Independence: “The Tribunal sees the Declaration as
some profound assertion of Maori Sovereignty. However, the
Declaration had no international status, and was regarded by
British officials at the time as ‘a silly as well as an
unauthorised act.’ For some inexplicable reason, the
Tribunal has again ignored all this evidence.”

Professor
Moon says the most concerning aspect of the report is the
way in which the Tribunal seems to be re-writing history
with little apparent regard for evidence. “This report may
serve the interests of some groups,” he says, “but it
distorts New Zealand history in the process, and seriously
undermines the Tribunal’s
credibility”

Moon's comments were widely reported, on Stuff, for example, and the New Zealand Herald website. Neither media organisation seemed to consider it important to sound out the views of other Treaty experts, highlighting once again the basic historical illiteracy of much of the New Zealand media.

But what of the substance of Moon's criticisms? It is difficult to know why he objects to the notion that Britain sought to acquire sovereignty and the power to make and enforce law over both Maori and Pakeha. The Secretary of State for the Colonies, the Marquis of Normanby, issued instructions to William Hobson on 14 August 1839 that were unambiguous on the point. Hobson was instructed that:

Her Majesty’s Government have resolved to authorize you to
treat with the Aborigines of New Zealand for the recognition of Her Majesty’s
sovereign authority over the whole or any parts of those islands which they may
be willing to place under Her Majesty’s dominion. (GBPP, 1840 [238], p.38).

It is certainly the case that the British government did not expect to exert complete control over Maori communities from the outset. Hobson was informed that:

until they can be brought within the pale of civilized life, and trained to the adoption of its habits, they must be carefully defended in the observance of their own customs, so far as these are compatible with the universal maxims of humanity. (GBPP, 1840 [238], p.39).

That final qualification was crucial, and Hobson was further instructed that 'the savage practices of human sacrifice, and of cannibalism, must be promptly and decisively interdicted'.

What about the British government response to He Whakaputanga/the Declaration of Independence? This is what the Secretary of State for the Colonies, Lord Glenelg, wrote to the governor of New South Wales in May 1836:

I have received a Letter from Mr. Busby, enclosing a Copy of a Declaration made by the Chiefs of the Northern Parts of New Zealand, setting forth the Independence of their Country, and declaring the Union of their respective Tribes into One State, under the Designation of the Tribes of New Zealand. I perceive that the Chiefs, at the same Time, came to the Resolution to send a Copy of their Declaration to His Majesty, to thank Him for His Acknowledgement of their Flag; and to entreat that, in return for the Friendship and Protection which they have shown and are prepared to show to such British Subjects as have settled in their Country, or resorted to its Shores for the Purposes of Trade, His Majesty will continue to be the Parent of their infant State, and its Protector from all attempts on its Independence.

With reference to the Desire which the Chiefs have expressed on this Occasion to maintain a good Understanding with His Majesty’s Subjects, it will be proper that they should be assured, in His Majesty’s Name, that He will not fail to avail himself of every Opportunity of showing His Goodwill, and of affording to those Chiefs such Support and Protection as may be consistent with a due Regard to the just Rights of others, and to the Interests of His Majesty’s Subjects. (GBPP, 1837-38, (680), p.159).

Normanby told Hobson in 1839 that the British government 'acknowledge New Zealand as a sovereign and independent state' (though he qualified that with reference to the tribal nature of its political structures). It was in part this prior acknowledgement that led the British to seek a cession of sovereignty in 1840. Particular efforts were later made to secure the signatures to the Treaty of Waitangi of those who had earlier signed He Whakaputanga. Te Wherowhero, though approached more than once to sign the Treaty, refused. Te Hapuku of Hawke's Bay (another of those to sign the Declaration) did sign the Treaty.

These are matters that have been well traversed by historians in recent decades. Indeed, as the Tribunal notes in its report, its findings are hardly controversial but reflect a wider historical consensus. The fact that it is not a unanimous consensus does not change the fact that many historians would have no difficulty with the Tribunal's findings.

(By way of disclosure, I gave expert evidence in the Stage One hearings, though not directly relating to He Whakaputanga or the Treaty. My evidence concerned the wider context of early contact and encounter between Maori and Pakeha in the north of New Zealand).

3 comments:

Glad to see you have addressed the almost instant 'expert' criticism on Stuff. Funny how we don't see the one 'expert' newspapers and National Radio tend to go to making a appearance at hearings. I was tempted to leave a comment on their website suggesting they seek the opinion of an 'expert' who was actually involved in the case - but felt that would just be fodder for all the trolls. It would be great if you wrote up a response as an opinion piece for the Herald.

I too disagree with the tribunal's findings. The Treaty of Waitangi was a deliberate deed of transfer of the federal power of the Wakaminenga, including the right of collective governance (kawanatanga), to the Crown. The chiefs retained their individual rangatiratanga, in return for recognition of the transfer of federal authority and governance to the Crown, and their subjection thereto. Busby and Williams drafted and translated both documents, favouring a consistency of comprehension between both documents. I have written an article on this, but not being a professional historian, it is virtually impossible to get it peer reviewed let alone published... roger evans (rogleigh@clear.net.nz)